Why Supreme Court Nominee Brett Kavanaugh Will Kill Roe

This piece was originally published on July 11, 2018. We’re republishing it now as Supreme Court Justice nominee Brett Kavanaugh's confirmation hearings continue this week. After the hearing ends on Friday, the Judiciary Committee will vote on Kavanaugh's nomination, before it goes before the full Senate. To be confirmed, Kavanaugh needs a majority of 51 votes.

With Brett Kavanaugh as Trump’s Supreme Court pick, there’s more reason than ever to think that Roe v. Wade, the ruling which forbids the government from placing an “undue burden” on women’s access to abortion, will be overturned.

Kavanaugh, a conservative federal appeals court judge and former aide to President George W. Bush, has already ruled against an undocumented 17-year-old who wanted to be released from immigration custody to obtain an abortion in Garza v. Hargan in 2017. When a federal judge ruled that the minor in that case could be released, Kavanaugh wrote a decision that blocked her from having an abortion for 10 more days, until she could find an immigration sponsor. As Judge Patricia Millet’s dissent explained, the minor “has already been forced by the government to continue an unwanted pregnancy for almost four weeks, and now, as a result of this order, must continue to carry that pregnancy for multiple more weeks. Forcing her to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason.”

The full appeals court overturned Kavanaugh’s ruling. He claimed that in doing so they went against the government’s “permissible interest in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.”

The 'permissible interest in favoring fetal life' part ought to give you some pause, because, if the court leans on that heavily, it can allow the States to place further and further restrictions on abortion until it is legal in name only.

That’s if it remains legal at all.

Trump promised his followers in 2016 that if he was elected, Roe v. Wade would be overturned, declaring, “that will happen. And that will happen automatically, in my opinion, because I am putting pro-life justices on the court."

"Trump will be pushing hard to appeal Roe because he needs a clear win."

Trump has a pretty terrible track record thus far of following through on his promises. The wall as Trump envisaged it isn't being built, and it seems unlikely that Mexico will pay for it. Relations with North Korea seem to have encountered setbacks nearly immediately after Trump went to meet with the dictator Kim Jong Un. A global trade war is set to hurt Trump’s base. The government has failed to deliver any real solution on the opioid epidemic.

Whatever else can be said about Kavanaugh, he’s very much Trump’s man. And it’s likely that Trump will be pushing hard to appeal Roe because he needs a clear win.

If Kavanaugh is appointed it means there will likely be five votes on the Supreme Court to overturn Roe v. Wade. 5-4 is a pretty slim margin regarding whether or not Roe will actually be overturned—we’re more likely to see increased restrictions on a state by state level first—but, if Trump’s election has taught us anything, it has taught us to expect the worst.

So, we need to start thinking about what will happen when, or if, Roe is repealed.

Louisiana. Mississippi. North Dakota. South Dakota.

Those are states which have trigger laws that are intended to ban abortion as soon as Roe is repealed. It’s possible that you could be planning to have an abortion there one week and, overnight, following a ruling, that might not longer be an option. Eight more states promise to ban abortion as soon as Roe is overturned. Ten more have Pre-Roe bans on the books that could, again, become the rule if Roe is overturned.

So, in 22 states, or nearly half of the country, women won’t be able to access an abortion. If there was ever a time for women in those states who have had abortions to begin speaking out, forcing people to acknowledge that this is an issue that affects people they know, it’s now.

"If there was ever a time for women who have had abortions to begin speaking out, forcing people to acknowledge that this is an issue that affects people they know, it’s now."

Trump doesn’t seem to feel how restrictive this is. He has said that if abortion is illegal in some states, “Yeah, well, they’ll perhaps have to go, they’ll have to go to another state.”

What he’s proposing is similar to the situation in Ireland, where, earlier in 2018, nine women a day traveled to the UK to have an abortion. This is, emphatically, not a policy that works out well. Many women don’t have the means to travel. Those that do not often resort to trying to induce an abortion themselves. For all anti-choicers who want to dismiss the deadly effects of this practice as something that wouldn’t happen in the modern age, we can see quite clearly what means women in Ireland have employed.

People who support abortion in states where it is still legal should be ready to open up spare beds to women who are traveling for an abortion. Some services in America, like the Haven Coalition, or the Midwest Access Coalition are already helping offer women traveling for abortions a safe space to stay.

We should also be focused, right now, on ensuring that abortion rights are protected in the states that are not hostile to abortion. According to the National Institute for Reproductive Health, New York, New Mexico, West Virginia, Massachusetts, and Rhode Island are currently working to update their pre-Roe laws to ensure women’s access to abortion, even if Roe v. Wade are overturned. Push your lawmakers to be doing the same.

Go to rallies. Try to get anyone to speak out in any way you can.

We may lose Roe. We might not have power over that. But I pray that we don’t lose it without a fight.

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